92 Decision Citation: BVA 92-12629
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-46 732 ) DATE
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THE ISSUE
Entitlement to restoration of a 40 percent evaluation for
chronic lumbosacral strain with history of radiculopathy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Wanda Brown
ATTORNEY FOR THE BOARD
G. P. Hanson, Counsel
INTRODUCTION
The veteran had active military service from December 1973
to February 1975.
This matter came before the Board on appeal from a rating
decision of November 1988 issued by the Chicago, Illinois,
Regional Office (hereinafter RO). That decision involved a
reduction in the evaluation for chronic lumbosacral strain
with history of radiculopathy from 40 to 20 percent
disabling. The notice of disagreement was received in
January 1989. The statement of the case was issued in March
1989. The substantive appeal was received in March 1989. A
hearing was held before a hearing officer at the RO in
November 1989, and in a decision of April l990, the hearing
officer affirmed the reduction in rating.
A supplemental statement of the case was issued in May
1990. Another supplemental statement of the case was issued
in September 1990. The most recent supplemental statement
of the case was issued in March 1991. The case was docketed
at the Board in October 1991. The veteran has been
represented throughout his appeal by the Disabled American
Veterans. That organization submitted written argument to
the Board in February 1992.
REMAND
In the statement of February 1992, the veteran's
representative asserted that the provisions of 38 C.F.R.
§ 3.344 could not be satisfied until an up-to-date physical
examination was afforded. The veteran, in various
statements submitted to the Board, was of similar opinion.
In these respects, we note that the only examination upon
which the reduction in evaluation for the veteran's
service-connected back disorder was predicated took place in
September 1988 and that a subsequent physical examination
has not been afforded the veteran.
The Board also recognizes that the VA has a duty to assist
the veteran in the development of facts pertinent to his
claim, as set out in 38 U.S.C. § 5107(a). In order to
satisfy the duty to assist and to afford the veteran every
consideration, the Board is of the opinion that further
development is desirable. Thus, the case is REMANDED to the
RO for the following action:
The RO should schedule the veteran for
an examination by specialists in
orthopedic and neurological medicine in
order to determine the nature and
severity of the veteran's current back
disorder. If symptoms and pathology
reflective of discogenic disease are
shown, an opinion should be offered as
to whether they are referable to the
veteran's service-connected chronic
lumbosacral strain with radiculopathy.
All appropriate studies for the purposes
indicated should be conducted and the
results reported in detail. A copy of
this REMAND decision and the claims
folder should be made available to the
examining physicians prior to their
examinations.
Upon completion of the above development, the RO should
again review the veteran's claim, with due consideration to
the provisions of 38 C.F.R. § 3.344. Should the veteran's
claim remain denied, both he and his representative should
be issued a supplemental statement of the case and given a
reasonable period of time in which to respond. Thereafter,
subject to current appellate procedure, the case should be
returned to the Board for further consideration, if in
order. No action is required on the part of the veteran or
his representative until further notice is received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
WARREN W. RICE, JR. ROBERT D. PHILIPP
FRANCIS F. TALBOT
(CONTINUED ON NEXT PAGE)
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.